Hernandez v. Garland

• Decision Date: 28 June 2022
• Docket Number: 21-70493
• Parties: Jose Alberto HERNANDEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.4th 908

Jose Alberto HERNANDEZ, Petitioner,
v.
Merrick B. GARLAND, Attorney General, Respondent.

No. 21-70493

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2021 Pasadena, California
Filed June 28, 2022
Amended September 14, 2022

Niels W. Frenzen (argued) and Jean E. Reisz, University of Southern California, Gould School of Law, Immigration Clinic, Los Angeles, California, for Petitioner.

Lindsay Corliss (argued), Trial Attorney; Brianne Whelan Cohen, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Paul J. Kelly, Jr.,^* Milan D. Smith, Jr., and Danielle J. Forrest, Circuit Judges.

47 F.4th 910

ORDER

The Opinion filed on June 28, 2022, is amended as follows: on opinion pages 911–12 delete the following text:

give no deference

and insert the following text:

apply Skidmore deference

The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED, no further petitions for rehearing will be accepted.

FORREST, Circuit Judge:

The Board of Immigration Appeals (BIA) denied Petitioner Jose Alberto Hernandez cancellation of removal concluding that his receipt of temporary protected status (TPS) was not an admission and, therefore, he could not meet the statutory requirement that he have seven years of continuous residence in the United States after admission. The BIA also denied Hernandez's application for asylum concluding that his 2016 domestic-violence conviction was a "particularly serious crime" that barred him from relief. Hernandez challenges the BIA's decision raising two primary arguments: (1) under our precedent, his TPS does constitute an admission "in any status" under the cancellation statute, 8 U.S.C. § 1229b(a), and (2) the BIA applied an improper legal standard in deciding that his 2016 conviction was for a particularly serious crime.

We reject both arguments. In doing so, we hold that the Supreme Court's recent decision in Sanchez v. Mayorkas , ––– U.S. ––––, 141 S. Ct. 1809, 210 L.Ed.2d 52 (2021), effectively overruled our precedent requiring that the benefits conferred by an alien's immigration status be analyzed to determine if the alien had been "admitted in any status," see Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc), and we conclude that under Sanchez and the plain language of the relevant immigration statutes, Hernandez's TPS does not constitute an admission under 8 U.S.C. § 1229b(a)(2). We also conclude that the BIA did not err in classifying his 2016 domestic-violence conviction as a particularly serious crime that bars him from obtaining asylum.

I. BACKGROUND

Hernandez, a native and citizen of El Salvador, entered the United States unlawfully in 1999. The Government granted him TPS in 2003. The TPS program "provides humanitarian relief to foreign nationals in the United States who come from specified countries." Sanchez , 141 S. Ct. at 1812 ; 8 U.S.C. § 1254a(b). The Government may designate a country for protection if the country suffers from dangerous conditions arising from armed conflicts or natural disasters. 8 U.S.C. § 1254a(b). Citizens of the designated country who are already present in the United States may then obtain TPS. Id. § 1254a(c)(1). TPS protects aliens from removal for the duration of their country's designation and allows them to work in the United States. Id. § 1254a(a). An alien's unlawful entry generally does not preclude them from being granted TPS. Id. § 1254a(c)(2)(A)(ii).

In 2010, approximately seven years after Hernandez received TPS, the Government admitted him into the United States as a lawful permanent resident. Hernandez was convicted of multiple crimes after becoming a lawful permanent resident. He was convicted in 2014, 2015, and 2016 of "domestic violence with injury" under California Penal Code § 273.5(A) and sentenced to increasingly longer terms of imprisonment for each offense—four days, 30 days, and 364 days, respectively. The victim in all three cases was Hernandez's now ex-wife. Hernandez also was convicted of taking a vehicle without the owner's permission, California Vehicle Code § 10851A,

47 F.4th 911

and receiving or purchasing stolen property, California Penal Code § 496d(a). For his receiving-stolen-property conviction, he was sentenced to 16 months' imprisonment and served 200 days.

In August 2016, the Government charged Hernandez as removable based on his 2016 domestic-violence conviction, which was based on acts committed approximately five years after Hernandez became a lawful permanent resident. Hernandez conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(a) (LPR cancellation) and asylum. In 2017, the BIA denied his applications for relief based on his receiving-stolen-property conviction, not his 2016 domestic-violence conviction, and ordered him removed. But two years after Hernandez sought review of the BIA's decision, the California Superior Court vacated his receiving-stolen-property conviction upon which the BIA had based its denial of relief, and we granted the Government's unopposed motion to remand to the BIA.

On remand, the BIA returned the case to an Immigration Judge (IJ) for an analysis of how the vacatur of Hernandez's conviction affected his eligibility for LPR cancellation and asylum.¹ At a hearing, the IJ assumed without deciding that Hernandez's vacated² receiving-stolen-property conviction did not bar him from either form of relief. Hernandez confirmed that the Government admitted him as a lawful permanent resident on April 29, 2010. Although he was charged with removability for acts committed only five years later, Hernandez argued that he had nonetheless established the required seven years of continuous residence based on his 2003 grant of TPS. Because the Government argued that his 2016 domestic-violence conviction was a particularly serious crime that barred him from receiving asylum, Hernandez's testimony about his convictions focused on his domestic-violence convictions.

The IJ denied Hernandez's application for LPR cancellation concluding that Hernandez failed "to show seven years of continuous residence in the United States after having been admitted in any status." The BIA rejected Hernandez's argument that, under our precedent, receiving TPS is a grant...